1 

Filed 1/29/14 P. v. Rios CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

JOSE LUIS RIOS, 

 Defendant and Appellant. 

2d Crim. No. B245665 

(Super. Ct. No. 2012001531) 

(Ventura County) 

 Jose Luis Rios appeals his conviction, by jury, of sexual penetration by a 

foreign object of a person under 16 years of age (Pen. Code, § 289, subd. (i))1

, and one 

misdemeanor count of sexual battery. (§ 243.4, subd. (e)(1).) The trial court 

sentenced appellant to prison for the middle term of two years for the section 289 

violation and a concurrent term of 180 days for the misdemeanor conviction. 

Appellant contends the trial court erred when it failed to hold a hearing on his motion, 

pursuant to Evidence Code section 782, to introduce evidence that the 15-year old 

complaining witness had not yet disclosed her pregnancy to her parents when she 

accused appellant of these offenses. He further contends the trial court erred when it 

instructed the jury in terms of CALCRIM No. 361. Finally, appellant contends 

 

1 All statutory references are to the Penal Code unless otherwise stated.
2 

statements he made to police before he was advised of his Miranda2 rights should have 

been excluded from evidence. We affirm. 

Facts

 In January 2012, E.R. was 15 years old. Her parents were separated. 

She spent every other weekend with her father, Albert, who lived with his own parents 

in Oxnard. Appellant, who is Albert's half-brother, lived in the same house. E.R. and 

appellant did not know each other well and had never spent much time together. 

 Late one night, E.R. and her sister were in the living room, watching a 

TV movie with appellant. E.R. was lying on an air mattress with appellant. She fell 

asleep. She woke up at about 5:30 a.m., because she felt appellant's hand inside her 

shorts. He was moving his finger inside her vagina, in a circular motion. Appellant 

also touched her breast, pulled her leg onto his stomach and kissed her knee. He did 

not seem to be asleep. E.R. moved off the air mattress onto the floor and wrapped 

herself tightly in her blanket. About 10 minutes later, appellant complained that he 

was cold and asked E.R. to share her blanket with him. She did not respond. E.R. 

stayed awake, on the floor, until others in the house woke up. 

 E.R. stayed close to her father that day but didn't tell him about what had 

happened. She disclosed the incident to her boyfriend, Justin, during an evening 

telephone call. He encouraged her to tell her father. E.R. did so after the call with 

Justin ended. The next day, E.R.'s father brought her to the Oxnard police station to 

report the crime. E.R. made a pretext call to appellant. When she told appellant that 

she did not understand what had happened during the incident, he replied, "I'm sorry. 

[] I didn't know what the hell was going on through my head. I didn't mean to do 

anything like that." E.R. said that she did not understand why appellant put his hand 

down her pants. He said that he did not remember doing that, but if he did, he was 

"truly deeply sorry." Throughout the call, appellant claimed he did not remember 

doing anything to E.R., but he also apologized to her several times. E.R. told appellant 

 

2 Miranda v. Arizona (1966) 384 U.S. 444 (Miranda). 
3 

that what had happened was embarrassing. He replied, "I know it is." Although he 

continued to say he did not recall doing anything, he told E.R. he would not do it 

again. Appellant eventually ended the call, saying that he had to get back to work. 

 A few days later, two detectives from the Oxnard Police Department, 

Juanita Suarez and Erica Escalante, contacted appellant at his place of work. He 

agreed to drive himself to the police station for an interview. Once there, appellant 

went into an interview room with the detectives. They left the door open and told 

appellant that he was free to leave at any time, that he was not under arrest and that he 

could choose whether to answer any of their questions. 

 During their 90 minute video-recorded interview, appellant denied 

touching E.R. He said he told E.R. that he did not remember touching her because he 

was caught off guard by her accusation. His family thought he had touched her, but he 

hadn't. Appellant said E.R. was lying, but he did not know why she would lie about 

the incident. Appellant also said he believed E.R. was attracted to him. 

 One of the detectives told appellant that his family already thought he 

had touched E.R., so it would be best for him if he was able to pick himself up and 

move forward. Appellant asked how he could do that. The detective said they already 

knew he made the mistake and touched E.R. E.R. felt better after she talked about 

what happened; the detective suggested that appellant would also feel better if he did 

the same. Appellant then said that he was asleep on the air mattress with E.R. When 

he woke up, he had his hand was in her pants. He realized what he had done and 

pulled away from her. Appellant denied touching E.R.'s vagina or breast. He claimed 

that he was "grossed out" by what happened and did not know how his hand got inside 

her pants. 

 The detective asked appellant to write a letter of apology to E.R. He 

agreed to do so. As she left the room to get him paper for the letter, she asked 

appellant if he wanted the door open or closed. He wanted to close the door, so she 

did. Appellant then wrote his letter to E.R. It stated, "E.R., I am deeply sorry for what 
4 

took pla[c]e. I never meant to do those things to you. I don't know what was going on 

through my head. I won't be able to forgive myself for what I've done. I promise I 

won't do anything like this to anyone. Sorry. " Appellant was placed under arrest after 

he finished writing the letter. 

 In his testimony at trial, appellant denied touching E.R. at all. He said 

that he first learned about E.R.'s accusation in a text message from his brother, Albert, 

telling him to get his belongings out of the house and not come back. He apologized 

to E.R. in the pretext call because he thought she would stop making accusations 

against him. He was trying to avoid conflict. 

 Appellant testified that he told the detectives he put his hand down E.R.'s 

pants because they did not believe him when he told them the truth. He thought he had 

no other choice but to admit it, even though he had not touched E.R. He believed he 

had to tell the detective what she wanted to hear and that she would allow him to leave 

if he admitted touching E.R. When he wrote the apology letter to E.R., he wrote what 

the detectives told him to. 

 Appellant testified that, in his family it was not uncommon for family 

members, such as nieces and nephews, to sleep in the same bed as their adult relatives. 

During his interview with the detectives, however, appellant stated that he thought 

sleeping in the same bed as E.R. was kind of weird. Appellant also testified that 

Spanish is his first language and claimed to have been confused by some of the 

detectives' questions. On cross-examination, he stated that he had graduated from high 

school in California, where his classes were in English. He did not request an 

interpreter for the trial because he understood what was happening. 

Discussion

Evidence of E.R.'s Pregnancy

 E.R. discovered she was pregnant shortly before the incident with 

appellant occurred. She had not yet told her parents about the pregnancy. Before trial, 

appellant's trial counsel filed a motion under Evidence Code section 782 to admit 
5 

evidence of E.R.'s pregnancy. Counsel argued the pregnancy was relevant to E.R.'s 

motive the fabricate the assault and was also relevant to test the credibility of other 

prosecution witnesses on cross examination. Counsel speculated that E.R. may have 

fabricated the assault to distract attention from her pregnancy. 

 At a hearing on pretrial motions, defense counsel informed the court that 

she intended to file an affidavit under seal in support of the motion. The trial court 

declined to read any sealed document "until I know what statute or case stands for the 

proposition that I'm able to receive it under seal . . . . [¶] And if you can provide me 

with the authority, I'll make sure I read it. If I can consider it without [the prosecutor] 

seeing it, I'll consider it." Defense counsel withdrew the motion while she considered 

whether to file an affidavit that was not under seal. 

 The next day, E.R.'s boyfriend Justin F., testified that E.R. was 

emotional and upset during their conversation. He said this was the first time she had 

cried during their relationship. Defense counsel then asked, "Okay. And at this point, 

was this before or after she told you that she was pregnant?" 

 In a subsequent argument over the propriety of that question, defense 

counsel made an offer of proof concerning the relevance of E.R.'s pregnancy: "If a 15-

year-old is pregnant and she doesn't tell her mother she's pregnant and she doesn't want 

to tell her mother about this event and she texts her father, she avoids the problem until 

the problem becomes obvious. The problem becomes obvious within 30 to 40 days. 

[¶] This distracted the family while she developed an idea with [Justin F.] of how to 

explain to the family that they were now going to be parents at age 15 and 17, now 16 

and 18." Defense counsel argued E.R.'s pregnancy was also relevant to Justin F.'s 

credibility. The trial court rejected both arguments. It concluded E.R.'s pregnancy 

was not relevant because, "The fact that a person is pregnant does not mean it's a 

motive to commit a lie, to be happy, to have any particular motive." 

 The trial court also noted that defense counsel had not filed a motion 

under section 782 to admit evidence of the complaining witness' sexual conduct. It 
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described counsel's prior motion as "fatally defective" because counsel "didn't file an 

affidavit. And the Evidence Code specifically requires it." 

 Later in the trial, defense counsel renewed her motion to admit evidence 

of E.R.'s pregnancy, filing an affidavit that was not under seal. Defense counsel 

contended in her affidavit that the prosecution's failure to disclose E.R.'s pregnancy 

during discovery was a Brady3

 violation. Counsel further argued the pregnancy gave 

E.R. a motive to lie about the assault. E.R. was not concerned about maintaining her 

privacy because she had discussed her pregnancy on social media sites. The trial court 

again ruled the pregnancy was irrelevant. 

 Appellant now contends the trial court erred because it did not hold a 

hearing, outside the presence of the jury, at which counsel would have questioned E.R. 

concerning her pregnancy, to establish that the evidence was admissible and relevant 

to her credibility. Although we agree the trial court should have permitted counsel to 

file a sealed affidavit in support of her section 782 motion, we conclude the trial court 

did not prejudicially err when it declined to hold a hearing on the motion. 

 Evidence Code section 782 applies in prosecutions for sex offenses, such 

as the one at issue here. (Evid. Code, § 782, subd. (c).) Subdivision (a) of the statute 

provides that, "if evidence of sexual conduct of the complaining witness is offered to 

attack the credibility of the complaining witness under Section 780, the following 

procedure shall be followed: [¶] (1) A written motion shall be made by the defendant 

to the court and prosecutor stating that the defense has an offer of proof of the 

relevancy of evidence of the sexual conduct of the complaining witness proposed to be 

presented and its relevancy in attacking the credibility of the complaining witness. 

[¶] (2) The written motion shall be accompanied by an affidavit in which the offer of 

proof shall be stated. The affidavit shall be filed under seal and only unsealed by the 

court to determine if the offer of proof is sufficient to order a hearing pursuant to 

paragraph (3). . . . [¶] (3) If the court finds that the offer of proof is sufficient, the 

 

3 Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215]. 
7 

court shall order a hearing out of the presence of the jury, if any, and at the hearing 

allowing the questioning of the complaining witness regarding the offer of proof made 

by the defendant. [¶] (4) At the conclusion of the hearing, if the court finds that 

evidence proposed to be offered by the defendant . . . is relevant . . . and is not 

inadmissible pursuant to Section 352, the court may make an order stating what 

evidence may be introduced by the defendant, and the nature of the questions to be 

permitted. . . ." (Evid. Code, § 782, subd. (a).) 

 As subdivision (a)(2) of the statute makes plain, appellant's trial counsel 

was entitled to file a sealed affidavit in support of the motion. The trial court erred 

when it refused to review the sealed affidavit. We note, however, that the court stated 

it would review the sealed affidavit if trial counsel cited authority for its ability to do 

so. Rather than refer the court to subdivision (a)(2) of Evidence Code section 782, 

counsel withdrew the motion. Counsel could promptly have corrected the trial court's 

error had counsel cited the relevant portion of the statute. 

 The error was, however, harmless because counsel later supported the 

motion with an affidavit that was not filed under seal and does not contend on appeal 

that additional information would have been included in an offer of proof submitted by 

sealed affidavit. As the trial court correctly concluded, counsel's affidavit did not 

demonstrate that evidence of E.R.'s pregnancy was relevant to her credibility. 

Evidence Code section 782 requires defense counsel to make a written offer of proof 

explaining the relevance of the complaining witness' sexual conduct to his or her 

credibility. If the written offer of proof does not demonstrate that the evidence would 

be relevant to credibility, the trial court is not required to hold a hearing on the motion. 

(Evid. Code, § 782, subd. (a)(2), (3); People v. Rioz (1984) 161 Cal.App.3d 905, 916.) 

" 'A trial court's ruling on the admissibility of prior sexual conduct will be overturned 

on appeal only if appellant can show an abuse of discretion.' " (People v. Bautista

(2008) 163 Cal.App.4th 762, 782.) There was no abuse here because the trial court 
8 

correctly concluded that defense counsel's offer of proof was not sufficient to 

demonstrate that evidence of E.R.'s pregnancy was relevant to her credibility. 

 Appellant contended E.R.'s pregnancy gave her a motive to lie to her 

parents about the sexual assault, so they would be distracted or more sympathetic 

toward her when she told them about her pregnancy. Like the trial court, we are not 

persuaded. First, defense counsel's offer of proof never explained why E.R. would go 

to such extraordinary lengths to generate sympathy from her parents. 

 Second, the fact of E.R.'s pregnancy does not make her description of the 

assault any more or less believable. Respondent never claimed that E.R. was too 

young to know about sexual behavior unless she had been abused. (See, e.g., People 

v. Daggett (1990) 225 Cal.App.3d 751, 757.) As a teenager, E.R. was old enough to 

have that knowledge, even if she had no personal experience. Her personal sexual 

experience has no probative value in determining her credibility. 

 Finally, any error in failing to hold an evidentiary hearing on the motion 

was harmless because there is no reasonable probability appellant would have obtained 

a more favorable result had the trial court allowed E.R. to be questioned on this matter. 

(People v. Chandler (1997) 56 Cal.App.4th 703, 711.) Given the tenuous link between 

E.R.'s pregnancy and her credibility, the trial court would have had discretion to 

exclude the evidence on the ground that its probative value was outweighed by its 

potential for undue prejudice. (Evid. Code, § 782, subd. (a)(4); People v. Fontana

(2012) 49 Cal.4th 351, 370.) Moreover, the evidence against appellant was strong. 

E.R. promptly reported the incident to her boyfriend, her father and the police; 

appellant admitted touching E.R. during the pretext call and in his interview with the 

detectives. Under these circumstances, it is not reasonably probable appellant would 

have obtained a more favorable result had the evidence been presented to the jury. 

Instructional Error

 Appellant contends the trial court erred when it instructed the jury, in 

terms of CALCRIM No. 361 that, "If the defendant failed in his testimony to explain 
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or deny evidence against him, and if he could reasonably be expected to have done so 

based on what he knew, you may consider his failure to explain or deny in evaluating 

that evidence. Any such failure is not enough by itself to prove guilt. The People 

must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant 

failed to explain or deny, it is up to you to decide the meaning and importance of that 

failure." According to appellant, the instruction is not supported by the record because 

there are no facts, other than E.R.'s motive to lie, that he failed to explain or deny. We 

disagree. 

 CALCRIM No. 361 is properly given where the defendant " 'failed to 

explain or deny any fact of evidence that was within the scope of relevant crossexamination.' " (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) A 

contradiction between the defendant's testimony and that of another witness is not 

enough to support the instruction. (Id.) In addition, "[i]f a defendant has not been 

asked an appropriate question calling for either an explanation or a denial, the 

instruction cannot be given, as a matter of law." (People v. Roehler (1985) 167 

Cal.App.3d 353, 392.) The instruction is, however, properly given where there are 

"logical gaps" in the defendant's testimony (People v. Redmond (1981) 29 Cal.3d 904, 

911), or where "the defendant tenders an explanation which, while superficially 

accounting for his activities, nevertheless seems bizarre or implausible . . . ." (People 

v. Mask (1986) 188 Cal.App.3d 450, 455.) 

 The trial court here properly instructed the jury in terms of CALCRIM 

No. 361 because there were several facts he failed plausibly to explain. For example, 

appellant testified on direct examination that his cell phone rang during his interview 

with Detective Suarez. On cross-examination, appellant said he told the detective at 

the beginning of the interview that his phone had been deactivated because he hadn't 

paid the bill. The prosecutor asked whether appellant was lying when he said his 

phone was working on the day of the interview. Appellant replied, "No. 'cause I 
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remember it rang." Appellant then said he lied about his phone being deactivated and 

then said he only thought it had been deactivated. 

 Appellant testified on direct examination that he falsely confessed 

because E.R.'s father, Albert R., threatened to harm him for touching E.R. Appellant 

testified he was "not a person who likes to get into conflict. So whenever there is 

conflict, I would rather take another route and just end it and get it over with." He 

thought falsely confessing "was going to end the problem." Appellant could not, 

however, explain how falsely confessing to the assault would prevent Albert R. from 

harming him or "end the problem" between them. 

 Appellant testified that, when he wrote the apology letter to E.R., he only 

wrote what Detective Suarez told him to. He also testified, however, that Detective 

Suarez left the room while he wrote the letter. He did not explain how she could 

dictate the content of the apology letter to him when she was not in the room while he 

wrote it. In a similar vein, appellant told the prosecutor he would remember having 

touched E.R.'s vagina or breasts because those were "big things." Then, the prosecutor 

asked, "So it's your testimony as you sit here today that none of that, not a single one 

of those things ever happened. Is that your testimony?" Appellant replied, "As my 

knowledge, no." He then said, "I don't remember it happening." 

 Appellant was unable to explain any of these logical gaps and 

implausible explanations in his testimony. They provide adequate evidentiary support 

for the instruction. There was no error. 

Miranda

 Appellant contends the trial court erred when it admitted into evidence 

statements he made during his interview with the detectives because he was not given 

his Miranda4

 warnings before the interview began. We disagree. Appellant was not in 

custody when he made the statements at issue; there was no requirement that he be 

advised of his rights to remain silent and to counsel. 

 

4 Miranda v. Arizona (1966) 384 U.S. 444. 
11 

 A person may not, consistent with the Fifth Amendment privilege 

against self-incrimination, be subjected to custodial interrogation by law enforcement 

unless that person knowingly and intelligently waives his or her right to remain silent, 

to have an attorney present and, if indigent, to have appointed counsel. (People v. 

Storm (2002) 28 Cal.4th 1007, 1021.) These rights attach when the person is in 

custody, in the sense that "there is a 'formal arrest or restraint on freedom of 

movement' of the degree associated with a formal arrest." (California v. Beheler

(1983) 463 U.S. 1121, 1125 [77 L.Ed.2d 1275].) The question of whether a person is 

in custody is determined by "the objective circumstances of the interrogation, not on 

the subjective views harbored by either the interrogating officers or the person being 

questioned." (Stansbury v. California (1994) 511 U.S. 318,323 [128 L.Ed.2d 293].) 

We "defer to the trial court's resolution of disputed facts, including the credibility of 

witnesses, if that resolution is supported by substantial evidence[,]" and independently 

determine whether the challenged statement was obtained in violation of Miranda. 

(People v. Gurule (2002) 28 Cal.4th 557, 601.) 

 Here, the trial court correctly determined that appellant was not in 

custody during his interview with the detectives. The detectives initially contacted 

appellant at his work, near the end of his shift. They were wearing plain clothes and 

concealed both their badges and their weapons. They asked appellant if he would go 

with them to the police station; they did not tell appellant he was required to 

accompany them. Appellant drove his own vehicle to the station. The interview was 

conducted in a standard interview room, containing a table and five chairs. The 

detectives told appellant that he was free to leave at any time, he was not under arrest 

and that he could choose to answer, or to not answer any of their questions. They left 

the door to the interview room open during the interview, closing it only when they 

left the room so appellant could write his letter of apology. At no point was appellant 

placed under any physical restraint such as handcuffs. These facts are substantial 

evidence that appellant was not "in custody" before he was informed, at the end of the 
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interview, that he could not leave the station. (People v. Stansbury (1994) 9 Cal.4th 

824, 832-833; People v. Chutan (1999) 72 Cal.App.4th 1276, 1282-1283.) 

Accordingly, the trial court correctly admitted appellant's pre-advisement statements 

into evidence. 

Conclusion

 The judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 YEGAN, J. 

We concur: 

 GILBERT, P.J. 

 PERREN, J. 
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Kent Kellegrew, Judge 

Superior Court County of Ventura 

______________________________ 

 Sharon M. Jones, under appointment by the Court of Appeal, for 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney 

General, for Plaintiff and Respondent.